Q: Let’s say a parent is still alive but has dementia, and the parent’s children want to sell the parent’s home. One child has power of attorney. Does the parent still have a say or can the children just agree and sell the home?
A: The child who has power of attorney for financial matters is supposed to do what is in the best interests of the parent, not the children. If the child with power of attorney is later sued and is found to have acted not in the best interests of the parent, there could be trouble.
There are times that a parent may no longer what is in his or her best interests. If all of the children agree on what may need to be done and the child with the power of attorney also agrees, as long as the actions are taken in the best interest of the parent, the parent under these circumstances may not have a say in the sale of the home.
One particular issue, however, comes to mind. The children, and in particular, the child with the power of attorney, needs to make sure that he or she has the legal power to do certain things and take care of certain affairs of the parent.
If the parent still has the capacity to make his or her own decisions, the power of attorney may not be effective. Some powers of attorney are only effective upon the occurrence of certain events. If a parent is incapacitated and in the hospital, the child has the right to take certain actions using the power of attorney.
In other cases, the parent might need to be declared legally incompetent for the child to use the power of attorney. For this reason, the person receiving the power of attorney needs to understand under what circumstance he or she can use the power of attorney.
The child with the power of attorney should speak to an elder law attorney to get some guidance about what to do with the property and evaluate whether selling is in the parents’ best interests.